Benefit Amount Dispute

[jwdwater]

I am a log truck driver . I got hurt on the job sept 2012 , injuring my shoulder (rotator cuff) . I had surgery in Dec 2013 . My benefit amount was calculated using a previous job's earnings . My company is stating that because I am considered a season worker and because I was only with the company for 4 months they need only pay me 2/3 rd's of what I made at that previous job . The amounts are very different...my AWW for the previous job gives me a weekly benefit of 404.00 , but the AWW the state has my job at (and what the AWW I calculated from all my wage statements I have for those 4 months) is MUCH larger and would increase my weekly benefits to 634.00 I hired a lawyer who is wonderful but am just trying to ask around for others insights , knowledge etc ..We just had mediation 17 days ago on this ..I gave my statement ..they made statements but no resolution was made that day ..I am just wondering how long will it be before we hear something from them ..I did look the actual statue/law up on how they determine the AWW and what defines a seasonal worker and it says that if you work 26 weeks or less a year you are a seasonal worker ...my company works right through the year with no mud season ( hauling chips during that time ) ..like I said so far we are very pleased with our attorney , I am just sort of rooting around for myself through other peoples cases to get a sense of what to expect ..of course I know every case is different though ! any insight or thoughts are appreciated !! thank you guys !

[complwyr]

It is up to you and your lawyer to make something happen on this. Make sure your lawyer is moving aggressively, probably to a hearing on this disputed issue. But waiting for them to decide to pay you more is going to be a long wait, so be sure to act proactively to force a resolution to the issue. Make sure your lawyer has all the documentation of your pre-injury earnings that you can obtain, to help him prove how much you made during the AWW calculation period before your injury.

[jwdwater]

Thank you for getting back to me so quickly ...this site is fantastic ..I have learned a lot and feel more informed on how workers compensation cases are handled , so thanks again !

[BvIA]

..I did look the actual statue/law up on how they determine the AWW and what defines a seasonal worker and it says that if you work 26 weeks or less a year you are a seasonal worker ...my company works right through the year with no mud season ( hauling chips during that time )

You can be a 'seasonal worker' even though your employer does business 52 weeks/year. It is your classification, not the ER.

AWW is generally calculated based on 52 weeks, so yes, your prior job wages would be used in the calculation. Not saying you are wrong here...but they are usually pretty good at AWW calculations, there can be a penality due on benefits unreasonably delayed.

[jwdwater]

BvIA , where can I look up that you can be a seasonal employee even though my employer does business 52 weeks/year ? When I go to the Maine.gov website and look at the statues/laws/definitions I do not see that , I only see it saying if you work 26 weeks or later in the forest harvesting profession that you are considered seasonal ..thank you so much for your help and comments !

[BvIA]

Employers can be involved in any number of operations...seasonal employee describes you, not your employer. Just like what you read... I only see it saying if you work 26 weeks or later in the forest harvesting profession that you are considered seasonal . what you/employee work not the employer.

[jwdwater]

lol..I don't get what you mean ..the definition of a seasonal worker on the maine.gov site supports my claim that i am not a seasonal worker by definition itself ..I work well more than 26 weeks a year ...see what i am saying ? it classifies me as seasonal using certain qualifications you have to meet and I do not meet those qualifications according to the maine.gov statue/law ..if I am wrong please don't hesitate to let me know and again if there is a place or way for me to get any more info I might need would you let me know ? thank you , I appreciate your time and help !

[tony]

jwdwater

the definition of a seasonal worker on the maine.gov site supports my claim that i am not a seasonal worker by definition itself ..I work well more than 26 weeks a year

According to the exclusion in Section 102(4)(C) paragraph 1, you aren't a seasonal employee.

BvIA

I only see it saying if you work 26 weeks or later in the forest harvesting profession that you are considered seasonal .

Then you ain't seeing the exclusions in Section 102(4)(C) Paragraph 1

Section 102(4)(C) (seasonal employees)
This Section applies exclusively to “seasonal employees”.

“Notwithstanding paragraphs A and B, the average weekly wage of a seasonal worker is determined by dividing the employee's total wages, earnings or salary for the prior calendar year by 52.

(1) For the purposes of this paragraph, the term "seasonal worker" does not include any employee who is customarily employed, full time or part time, for more than 26 weeks in a calendar year. The employee need not be employed by the same employer during this period to fall within this exclusion.

(2) Notwithstanding subparagraph (1), the term "seasonal worker" includes, but is not limited to, any employee who is employed directly in agriculture or in the harvesting or initial hauling of forest products.”

http://www.maine.gov/wcb/departments...uments/AWW.rtf
http://www.maine.gov/search?button=&...est_collection

It would help if you guys supplied sources for your statements, this is why these threads drag out endlessly.
A simple statement of fact along with the source can do a lot to end this problem.
I don't understand why I'm meeting such resistance to this request, it's a very simple principle.

Tony

[jwdwater]

So I had mediation on this issue April 17th and havent heard ANYTHING yet ,,(June 28)...is that a normal time frame ?

[complwyr]

You apparently did not get the issue resolved at mediation. Either that, or you did and the other side has not acted to implement whatever you guys agreed to. If you have a lawyer, ask that person to follow up aggressively on it.